STATE OF KANSAS
BOARD OF INDIGENTS' DEFENSE SERVICES
DEPOSITORY State Library of Kansas 300 SW1 Otl1 Ave RM 343 Topeka KS 66612-1593
ANNUAL REPORT FISCAL YEAR 2010
714 SW Jackson, Suite 200 TOPEKA, KS 66603-3714 1111111~i1~~m~111~1ii~11111113 5141 00194009 8
TABLE OF CONTENTS
Table of Contents ...... i
Organizational Chart ...... ii
Background Information ...... 1-2
Administration ...... 3-5
Public Defender Operations ...... 6-11
Capital Defense Operations ...... 12-1 7
Assigned Counsel ...... 18-19
Appendix ...... 20
Table of Board Members ...... 21
Total Public Defender and Assigned Counsel Cases ...... 22
Total Public Defender and Assigned Counsel Cost per Case ...... ,...... 23
Public Defender (Trial Office) Caseloads ...... 24
Map - Public Defender Offices and Counties Served by Public Defenders ...... 25
Map - Counties Having Public Defender Availability, Served by Contract Counsel, or Agreement to Reduce Costs with Local Bar ...... 26
Map - Assigned/Contract Counsel Felony Cases per County ...... 27
Map - Assigned Counsel Attorney Costs and Costs per Case by County ...... 28
I Organizational Chart
8.li11tieri~'i~ i.Sedgwick i . ·I.~ti;r;· *Legal Services for Prisoners :.rn~:~~;''. }~!Jepend~n~ · Satdlite.
*K.S.A. 22-4514a provides for the submission ofLSP, Inc. budget toBIDS for approval and submission
ii BACKGROUND INFORMATION
The State Board of Indigents' Defense Services was created by the 1982 Legislature (1982 Session Laws, Ch. 142) for the purpose ofproviding indigent felony defense services as required by the Sixth Amendment to the U.S. Constitution.
The present Board succeeds the Board of Supervisors of Panels to Aid Indigent Defendants (1969 Legislature - K.S.A. 22-4501 et. seq.) which was abolished on the effective date ofthe 1982 legislation. With the enactment of the act, the Board was given greater authority than its predecessor to ensure the cost-effective delivery of felony defense services for the citizens of Kansas. The State Board of Indigents' Defense Services exists within the executive branch of state government. The board consists of nine persons appointed by the Governor and subject to confirmation by the Senate. Members are appointed for terms of three years each. In addition, the board shall consist of not more than five members who are lawyers registered with the Kansas Supreme Court, at least one lawyer member from each county in the state having a population in excess of 100,000 and at least one member from each congressional district except that two members shall be from the frrst congressional district.
The state board has the following duties:
1) To provide, supervise and coordinate in the most efficient and economical manner possible the constitutionally and statutorily required counsel and related services for each indigent person accused of a felony and for such other indigent persons as prescribed by statute.
2) Establish in each county or combination of counties designated by the board a system of appointed counsel, contractual arrangements for providing contract counsel, or public defender offices or any combination thereof on a full or part-time basis for the delivery oflegal services for indigent persons accused of felonies.
3) Approve an annual operating budget for the board and submit that budget as provided in K.S.A. 75-3717.
4) Adopt rules and regulations in accordance with K.S.A. 77-415 et seq. and amendments thereto which are necessary for the operation of the board and the performance of its duties and for the guidance of appointed counsel, contract counsel and public defenders, including but not limited to:
a) Standards for entitlement to legal representation at public expense;
b) Standards and guidelines for compensation of appointed counsel and investigative, expert, and other services within the limits of appropriations;
c) Criteria for employing contract counsel;
d) Qualification, standards and guidelines for public defenders, appointed counsel and contract counsel.
5) Prepare and submit to the Governor and Legislature an annual report on the operations of the board. 1 6) Hold a hearing before changing the system for providing legal services for indigent persons accused of felonies in any county or judicial district if such hearing is requested by two or more members of the board.
The board was also given the statutory authority to appoint a State Director of Indigents' Defense Services. The director is responsible for the overall operation and administration of the agency, including the delivery of the constitutionally and statutorily required counsel and formulation and implementation of the policies and directives of the nine-member board. The director is also responsible for fiscal management, personnel supervision, inventory management, and program development.
2 ADMINISTRATION
The Administration Office is staffed by the Executive Director, (State Director) Assistant Director, Technology Support Supervisor, two (2) Technology Support Consultant II, Systems Analyst, Human Resource Professional II, Accountant III, Accountant I, and an Accounting Specialist.
State Director
The duties of the State Director are defined by K.S.A. 22-4525 as follows: "The state director of indigents' defense services shall be chief executive officer of the state board of indigents' defense services. In addition thereto, the director shall: (a) supervise the operation, policies and procedures of the office of the board; (b) prepare and submit to the board an annual report of the operation of the office in such form as the board directs; and (c) perform such other duties as the board requires." The Executive Director is responsible for overall supervision, agency pla.n..Ping, and providing the most current mid accurate information regarding the agency to Board members, the Governor's Budget Division, the Legislative Research Department, legislative subcommittees, all levels of the Executive Branch, and employees throughout our agency.
In addition, the State Director provides administrative supervision and support to contract counsel and assigned counsel by initiating and overseeing contracts with private attorneys, reviewing and authorizing payment for expert services and updating Board policies. The State Director directly supervises the Assistant Director, Personnel Section, the Chief Defenders of all offices and the death penalty appeals attorneys.
Auditing Section
The Auditing Section is responsible for auditing all assigned counsel, expert, transcriptionist and contract attorney vouchers and determining payments in accordance with Board policy, rules and regulations. Beginning in FY 2002, the Auditing Section implemented dataset submission of voucher payments to the Department of Administration. This is a paperless process that reduced time spent on redundant data entry as well as reducing cost of data processing services. This process has ensured more timely payments to assigned counsel and experts. In late FY 2002, further revision to voucher forms helped cut down voucher processing time. Regulations, forms, orders and instructions for expert and attorney services were posted on the agency website. In FY 2004, an electronic payment inquiry form was added to better handle attorney questions on payment issues. An Accounting Specialist was added in FY 2005 to assist with the increasing voucher volume. The Exceptional claims are processed by the Accounting Specialist and further reviewed by the Assistant Director and State Director. Special claims are prepared by the Assistant Director for review by the Board. The Auditing Section is supervised by the Assistant Director.
Personnel Section
The Personnel Section of BIDS is responsible for all major personnel functions and activities related to human resource management such as employee relations, benefits, FLSA, ADA, FMLA, Shared Leave Program, affirmative Action/Equal Employment Opportunity, employment, recruitment/orientation/exit interview, training, timekeeping, maintaining position organizational charts, and SHaRP. The Personnel Section also coordinates the appointment of unclassified personnel with the Governor's Secretary of Appointments.
The HR unit continually initiates changes and updates to the Employee Handbook, Personnel Handbook, .and New Employee state-wide Orientation Training due to regulation changes. The HR unit has been involved with 3 the Division of Personnel Services dealing with compensation and other issues. The agency continues to increase the use of technology by using the automation of the State Self Serve web page for employees to view personal information, training summary, leave balances, paychecks, updating W-4 tax information, and requesting the reissue ofW-2 forms. For the past few years, technology has been used for open enrollment changes, viewing pay checks, viewing leave balances and to view total compensation. This continues to be maintained through Sharp.
Accounting Section
The Accounting Section consists of an Accountant ill and an Accountant I. The Accounting Section is responsible for auditing, collecting supporting documentation and processing payments for all operating expenses of the field offices. This section is responsible for the monitoring and processing of defendant recoupment submitted by the District Courts. These funds are submitted to the State Treasurer for deposit into the State's Revenue Accounts. This section supports the Assistant Director, who acts as program manager for the field offices, by coordinating large purchases, office moves, travel requests, negotiating leases, and other projects that would affect the goals of the Public Defender program. The Accountant ill is responsible for providing individual monthly expenditure reports for each field office to the Director, Assistant Director, and to each field office. The Accountant I and ill assist with the compilation of the annual budget, assigned counsel payment inquiries and grant expenditure records.
Information Systems Section
Two Technology Support Consultant II's and the Technology Support Supervisor comprise the section's three FTE's for FY 2009 and FY 2010. The Information Technology Section provides planning, design, procurement, implementation, training, and support of the agency's information resources including computer equipment, LAN/WAN connections, VPN, applications and telecommunications. The Technology Support Supervisor develops the Three Year Information Technology Management and Budget Plan and directs the section in completing the objectives contained in the plan. With the use of statewide WAN connections and TCP/IP remote connections in smaller outlying offices, the agency is positioned to provide information, services, demographics and statistical data to its internal and external customers.
During FY 2007, limited quantities of multimedia projectors, flash drives and laptops were purchased and distributed to field offices to allow Public Defenders to provide electronic presentation of evidence at trial. A· DAT72 drive was installed along with Arcserve to backup all KANWIN servers; DAT72 tape drives were configured in all non-KANWIN sites for backing up each field office data using BACUP EXEC. Additionally, it became necessary to replace telephone systems for the Sedgwick County Public Defender Office, the Reno County Public Defender Office, and purchase a new phone system for the Sedgwick county Death Penalty Defense office. The IT staff will coordinate a team effort to continue research for a legal case management/legal software system that can be utilized to replace the current statistical database systems, and streamline daily field office processes of opening and closing cases, calendaring, providing case status updates, etc.
During FY 2008 the main focus of the section was to further the development of agency-wide software/hardware standards, security systems and protocols, and user security training. Additionally, the IT staff has continued to work with the Accounting and Auditing staff to review and document our agency accounts payable process and databases. The databases for each public defender office were moved from Paradox to Access with the implementation of Microsoft Office 2007.
4 In FY2009 IT staff completed the single domain project. All nine stand-alone domains across the state have been joined to KSBIDS. Wan, giving one central point for Active Directory.
SPARK instant messaging (Open Source) was implemented throughout the agency, providing more efficient and cost effective inter-agency communications by reducing calling between field offices and the Administration office.
All Administration databases have been converted from Paradox 9 to MS Access 2007 bringing the agency up to date with software and in preparation for SMART. This conversion has provided the Administration office with more detailed reporting and the streamlining of processes.
In FY2010, an offsite backup server was installed and an onsite backup server was installed for disaster recovery planning with funds received through a JAG grant.
5 T iC DEFENDER OPERATIO
6 PUBLIC DEFENDER OPERATIONS
The present Board succeeds the Board of Supervisors of Panels to Aid Indigent Defendants (1969 Legislature - KSA 22-4501 et seq.) which was abolished on the effective date of the 1982 legislation. The first two public defender offices (3rd Judicial District - Topeka, and 8th Judicial District - Junction City) were authorized and organized in FY 1972, and the third (28th Judicial District - Salina) was set up in FY 1973. The 18th Judicial District Public Defender Office (Wichita) was created in FY 1985, although it began its phase-in during the latter part of FY 1984. On July 3, 1989, the 10th Judicial District Public Defender Office (Johnson County) began accepting indigent felony appointments. The 25th Judicial District Office (Garden City) began accepting cases in January 1994. The 27th Judicial District Public Defender Office (Hutchinson) opened in June of 1996. The Johnson County Office opened a satellite office in Miami County in June of 1996. In August of 1996, the Garden City Office began accepting cases at a satellite office in Liberal, Kansas. The Northeast Kansas Conflict Office began accepting cases in July of 1997 and the Southeast Kansas Public D~fender Office (Chanute) bega11 accepting cases in August of 1997 and a satellite office was opened in 2005 in Independence. The satellite office in Miami County was closed that same year in favor of a contract to allow attorney FTE to devote full time to Johnson County. In FY 2009 a conflict office was opened in Sedgwick County staffed with three senior trial attorneys to handle conflict cases in Sedgwick County. In FY 2010, the Liberal Public Defender Office was closed due to inability to recruit and retain experienced attorney staff.
Third Judicial District Public Defender Office (Topeka)
This office was one of three pilot public defender programs begun in 1972. The office is currently staffed by 9 attorneys. Support staff includes one investigator, two legal assistants, and three clerical staff. For FY 2010, the Third Judicial District Public Defender Office handled Shawnee County cases totaling 996 cases completed, including 5 off-grid, 12 severity level one and three drug manufacturing cases.
Salina Public Defender Office
The Salina Public Defender's Office began defending the indigent in Saline and Ottawa counties in 1972. One attorney handled the trial and appellate caseload until around 1986 when a second attorney was added to the staff In 1988 the office was combined with the Junction City Public Defender Office to form the North Central Regional Public Defender Office. With regionalization, the territory served by the office was significantly enlarged from Saline, Ottawa, and (later) Lincoln counties to also include Cloud, Mitchell, Jewell, and Washington counties in the Twelfth Judicial District. A third attorney was added around 1990. In 1997 the board separated the Salina and Junction City offices in order to streamline management efficiencies. The office is currently staffed by seven attorneys and support staff that includes one investigator, one legal assistant and two clerical staff. The Salina office handled 1,060 cases during FY 2009 including Saline County, and conflict and high-level cases within approximately a 100 mile radius of Salina. In FY 2007, this office suffered a 50% attorney turnover rate, affecting the ability to complete cases. Additionally, in FY 2008, the office was forced to decline appointment on new cases for one month due to the heavy caseload for six attorneys. In FY 2009, 1056 cases were completed, including - 9 off-grid felonies spread over four counties in addition to 223 other high level cases per attorney.
In FY2010, the office completed 1,143 cases including 11 off-grid, 14 severity level one and 16 drug manufacturing cases.
7 Junction City Public Defender Office
The Junction City Public Defender Office was formerly part of a regional office in combination with the Salina Public Defender Office. As of June 1997, the office became independent serving the 8th and 21st Judicial Districts. The 8th Judicial District consists of Geary, Dickinson, Marion and Morris counties. The 21st Judicial District is comprised of Riley and Clay counties. The Junction City Office is responsible for felony representation in the above-mentioned judicial districts with steadily increasing caseloads in all counties. During FY 2001, an additional attorney position helped to alleviate the heavy caseload that necessitated the court to add another judicial position. In FY 2007, two additional attorney positions were added to handle increasing caseloads due to the expansion of Fort Riley. The office is staffed by eleven attorneys, two investigators, one legal assistant and three clerical positions. During FY 2009, the Junction City office handled 1,568 felony cases. This office suffers constant turnover of both new and experienced attorneys due in part to the inability of attorneys to comnmte affordably from Topeka. This office was unable to accept new cases in Geary County for two months in FY 2008 due to shortage of attorneys. Again in FY2010, the office was forced to decline new appointments for two months due to a 50% attorney resignation. Nevertheless, this office completed work on 1,603 cases in FY2010, including 16 off-grid, 15 severity level one cases and 6 drug manufacture cases.
Sedgwick County Regional Defender Office (Wichita)
The Legislature authorized funding for the largest office in the state in Sedgwick County in October 1983. The office began taking cases in June 1984. In FY 2009, this office completed 4,527 cases and in FY2010 4,755 cases were completed- a 4% increase while three positions were cut due to budget reduction. The office is staffed by twenty-four attorneys and support staff that includes one investigator, one social worker, two legal assistants and five clerical staff.
Reno County Regional Defender Office (Hutchinson)
A satellite office in Reno County was established in FY 1997 and was established as a separate regional office in FY 2001. This office is currently staffed by five attorneys, one investigator and one legal assistant. The office handled 706 cases in FY 2009. The office completed 656 cases in FY2010 including 9 off-grid, 8 severity level one, and 9 drug manufacturing cases. This staffing level allows for representation on high-level felonies in the surrounding counties of Rice, Barton, Stafford, and Pratt. In addition, the Reno County office is "on call" for appointment on any high-level felony cases in west-central Kansas.
Tenth Judicial District Public Defender Office (Olathe)
The office began accepting cases in July of 1989. In addition to serving Johnson County, the office is responsible for handling off-grid cases in Miami, Linn, and Franklin counties. Case filings have increased slightly for FY 2008 but decreased again in FY2009. The office is staffed by sixteen attorneys and support staff that includes two investigators, four legal assistants and three clerical staff. The office completed work on 2,292 cases in FY 2009. In FY 2007 there was a decrease in case filings (100 cases) and an overall decrease in completed cases of over 200 cases. In FY2010, 2,241 cases were completed including 13 off-grid, 26 severity level one and two drug manufacturing cases. Effective FY 2005, Miami County is under contract with private counsel.
8 Western Kansas Regional Public Defender Office (Garden City & Liberal)
The Garden City office, established in January of 1994, serves the 25th Judicial District, which includes Finney, Kearny, Hamilton, Greeley, Wichita, and Scott counties. The office also takes selected upper-level felonies throughout the western region of the state. Finney County case filings remain fairly predictable, but the outlying counties fluctuate greatly and the required travel time to these areas greatly affects attorney efficiency. During FY 2009 the office in Finney County handled 4 73 cases. In FY2010, 510 cases were completed, a 7% increase, including 17 off-grid, and 9 severity level one cases. The staff includes three attorneys, one clerical position, one legal assistant and an investigator.
The Liberal office opened in August of 1996 in response to requests from the Administrative Judge in the 26th district because all private attorneys had removed their names from the appointment list due to dissatisfaction with the rate of compensation. The 26th Judicial District includes Seward, Stevens, Morton, Stanton, Grant, and Haskell counties. The hourly rate paid to assigned counsel was increased from $50/hour to $80/hour in 2005 but this has not brought an increase in the number of assigned counsel. This office is currently staffed by one attorney. This position turns over frequently due to a lack of interest in this pay level for an outlying area. One support staff is also assigned to this office. During FY 2009, the Liberal office handled 325 cases. In FY2010, the office was closed due to the inability to recruit and retain experienced attorneys.
Southeast Kansas Public Defender Office (Chanute & Independence)
The Chanute office began accepting cases in September of 1997. The office located in Chanute was established in response to a lack oflocal attorneys willing to represent indigent defendants. The Thirty-first Judicial District includes Allen, Neosho, Wilson, and Woodson counties. In addition, the office is responsible for felony appointments in Greenwood County and for homicide appointments in Coffey, Anderson, and Bourbon counties. During FY 2009 the office completed 471 cases. The office is currently staffed by three attorneys, one legal assistant and an investigator. Attorney retention has been an on-going problem for this office, thus affecting efficiency. The third attorney position was vacant for over a year, which necessitated declining all cases from Greenwood County during that period. In FY2010, 480 cases were completed including 7 off-grid, 5 severity level one and 11 drug manufacture cases.
The Independence branch office was opened on September 1, 2004, also in response to a lack oflocal attorneys willing to represent indigent defendants. This office is staffed by two attorneys, one legal assistant and an investigator and is responsible for all cases in Montgomery and Chautauqua Counties. In FY 2009, 444 cases were completed in this Judicial District and in FY2010, 439 cases were completed including 5 off grid and 8 drug manufacure cases.
Northeast Kansas Conflict Office
The office, located in Topeka, began accepting cases on July 1, 1997. The office was established primarily in response to the large number of conflict cases generated in Shawnee County and the relatively high costs associated with these cases. In addition, the office is responsible for defending clients charged with off-grid homicides in counties within one hours drive from Topeka, as needed. The office has also accepted appointments in other counties when requested by local judges. The office accepts appointments on an extraordinarily high percentage of homicides and rapes, most of which proceed to trial. The office completed 337 cases in FY 2009. This office is currently staffed by three top trial attorneys, one of whom is lead counsel on death penalty conflict cases, one grant attorney and support staff that includes one investigator and one legal assistant. This is a
9 reduction in attorneys due to funding cuts of two attorney positions. In FY2010, the office completed 426 cases, an increase of 20%, including 11 off-grid cases and 14 severity level one cases.
Sedgwick County Conflict Office
At the start of FY 2009, the Sedgwick County Conflict Office was opened to handle trial cases on which the public defender office has a cr::rflict. This enables additional cases to be defended cost effectively by public defenders and replaces a private attorney contract. This office is staffed by a chief defender and two high level defenders and one legal assistant. The office began accepting cases July 1, 2008 and completed work on 404 cases, most of which were high level felonies and 9 of which were off-grid cases. In FY2010, a grant attorney position was added and 571 cases were completed including 14 off-grid, 9 severity level one and 2 manufacture cases.
Appellate Defender Office (ADO)
The concept of an appellate defender had been favored by the 1981 Interim Committee in Ways and Means and by the Judicial Counsel Report of that same year. In June 1985, the Board approved the development and implementation ofthe Appellate Defender Office as a statewide office to represent indigent felony defendants on appeal.
In FY 1994, an appellate defense program was established in partnership with the University of Kansas School of Law whereby law students prepare direct appeal briefs under the supervision of an appellate defender. In FY 2005, a similar program was established in partnership with the Washburn University School of Law. The universities provide office space, equipment and student labor.
In FY 2002, the Capital Appeals and Conflicts Office and the Capital Appeals Office were established through reassignment of appellate defenders to provide appellate defense on capital murder convictions where the death penalty was issued and on other capital and capital eligible cases. Capital defense is the priority ofthese offices. However, both offices handle conflict cases and overflow cases from the appellate defender office. This staff and their expenditures are included in the Capital Defense section of this budget.
The Appellate Defender office is currently staffed with sixteen appellate defenders, including one acting chief, two deputies, two legal assistants and five support staff. The caseload of this office increases, then levels off depending on whether the Kansas Supreme Court decides a case that sets new precedent for current cases and future case filings. In FY 2009, the appellate office docketed 894 cases, an increase from FY2008of8 cases. In FY2010, a grant attorney position was added and 883 cases were docketed.
10 PUBLIC DEFENDER OPERATIONS The board supervises the following public defender offices:
NUMBER OF OFFICE EMPLOYEES JURISDICTION
Third Judicial District Public Defender (Topeka) 14 Shawnee County
Northeast Kansas Conflict (Topeka) 5 Shawnee, Osage, Douglas, Jefferson, Jackson, Pottawatomie, Wabaunsee, and Lyon counties.
Junction City Public Defender 18 Dickinson, Geary, Marion, Morris, Clay, and Riley counties.
Salina Public Defender 10 Saline, Lincoln, Mitchell, Ottawa, Washington, McPherson, Cloud, Jewell, Republic, Ellsworth, Rice, and Russell counties.
Reno County Regional Defender (Hutchinson) 6 Reno, Stafford, Barton, Rice and Harvey, Rush, Pawnee, Pratt and Kingman counties
Sedgwick County Regional Defender (Wichita) 35 Sedgwick County
Wichita Conflicts Office (Wichita) 4 Sedgwick County
Tenth Judicial District Public Defender (Olathe) 24 Johnson and Franklin counties
Western Kansas Regional (Garden City) 6 Finney, Hamilton, Kearny, Scott, Greeley, Wichita, Lane and Ford counties
Southeast Kansas Public Defender (Chanute) 5 Allen, Neosho, Wilson, Woodson, Greenwood, Anderson, Bourbon, Crawford, Cherokee, Coffey and Labette counties
Southeast Kansas Public Defender (Independence) 4 Chautauqua and Montgomery
Appellate Defender (Topeka) 23 Statewide
Death Penalty Defense Unit (Topeka) 6 Statewide
Death Penalty Defense Unit (Wichita) 4 Statewide
Capital Appeals and Conflicts (Topeka) 2 Statewide
Capital Appeals (Topeka) 3 Statewide
* Those counties that appear in italics request representation for off-gridfelonies and may include severity level 1 cases **There are eleven fewer public defenders in FY 2009 than in FY 2010 due to budget reductions.
11 CAPITAL DEFENSE OPERATIONS
12 Death Penalty Defense Unit (DPDU)
The Board of Indigents' Defense Services established the Capital Defense Coordinator Office in FY 1995 in response to the enactment of the death penalty. The Board transferred its most experienced attorney to the office and authorized a temporary Office Assistant I to assist. In FY 1996 the office expanded and its name was changed to the Death Penalty Defense Unit to more accurately reflect its mission to defend potential death penalty cases statewide. The purpose of the office is to establish and administer procedures and to provide services that result in the highest quality defense of person's accused of murder when the potential penalty is death. To accomplish this purpose, the Death Penalty Defense Unit will (1) represent all individuals, except those with which the office has a conflict of interest, charged with potentially capital cases wherever charged in the state; (2) establish and administer a system by which courts may appoint qualified attorneys; (3) plan and execute training programs for staff, public defenders, private counsel, investigators, mitigation specialists and ancillary staff including continuing legal education programs, manuals and newsletters; (4) establish and maintain a resource library and consultation service for attorneys assigned to capital or potentially capital cases; (5) collect and maintain statistical records regarding the use of capital punishment; and (6) establish through contract and/or negotiation a system for providing trial counsel with competent and cost-effective expert and investigative services needed to defend potentially capital cases. In FY 2006, this office employed four trial attorneys, four appellate attorneys, one investigator, one mitigator and four legal assistants. An additional attorney temporarily utilized from a trial level office was assigned on conflict cases.
During FY 1995, the first fiscal year following reenactment of capital punishment, ten potential capital cases were filed with five charged as capital offenses. In the second year, FY 1996, four cases were charged as capital, two of which were represented by retained counsel and two by ~he Death Penalty Defense Unit. In FY 1997, twelve potentially capital cases arose, nine of which were charged with capital murder. In FY 1998, ten potential capital cases were filed, eight were in fact charged capital, two were reduced to non-capital and two were pled to avoid the death penalty. In FY 1999, nine cases were filed with potential capital charges, eight of those were filed capital, two pled to avoid the death penalty, and one was amended to non-capital.
In FY 2000, thirteen cases were filed with potential capital charges, six of those were filed capital, one pled to avoid the death penalty. Ten cases were completed in FY 2000: Terry Adams, Gavin Scott, Marshall Tillman, Carsey Littlewood, Christopher Jones, LeMarco Williams, Tracy Markee, Carl Rails, Stanley Elms, and Rodney Almaguer. Of these, two persons were sentenced to death: Gavin Scott and Stanley Elms. In FY 2001, another eight cases were filed with potential capital charges. Of these, only one was resolved in FY 2001 by dismissal. Of previous years' filed cases, three cases were pled, one case was tried and one defendant expired.
In FY 2002, three more cases were filed with a potential sentence of death and six cases were resolved. Of the cases tried, one was found not guilty, one was sentenced to life and the other four cases were resolved by plea.
Cases Tried or Pied in FY 2002 Disposition FY filed Capital Representation
Michael Bethel - Crawford County Pied 2000 DPDU German Arellano - Wichita County Pied 2000 DPDU Cornelius Oliver- Sedgwick County Tried/Life 2001 DPDU Earl Bell - Sedgwick County Tried/ Acquittal 2001 Contract/Conflict Brian L. Trober - Wyandotte County Pied 2001 DPDU Marc Sappington - Wyandotte County Pied 2001 DPDU
13 In FY 2003, three new cases were filed with a potential sentence of death and five cases were resolved. Of those, one case was pled, one was tried and received a life sentence, three were tried and received the death penalty.
Cases Tried or Pied in FY 2003 Disposition FY filed Capital Representation
John Robinson - Johnson County Tried- Death 2000 Contract/Conflict Jonathan Carr - Sedgwick County Tried-Death 2001 DPDU Reginald Carr -Sedgwick County Tried-Death 2001 Contract/Conflict Chris Trotter- Wyandotte County Tried-Life 2001 Contract/Conflict Damien Lewis - Douglas County Pied 2003 DPDU
In FY 2004, four new cases were filed with a potential sentence of death. All of the cases scheduled for trial were continued. The retrial of Gary Kleypas is continued pending a decision in federal court. The trial of Darrell Stallings was continued because he was allowed to "fire" the death penalty defense unit and other public defenders had to take over the case. The trial of Errik Harris was continued because he is the codefendant with Stallings and the prosecutor wants to try Stallings first. Two cases were resolved by plea in FY 2004 - Uriah Beckman and Damien Thompson.
Cases Tried or Pied in FY 2004 Disposition FY filed Capital Representation
Uriah Beckman - Bourbon County Pied- Life 5/04 2004 DPDU Damien Thompson - Barton County Pied- Life 2/04 2004 Contract/Conflict Demetrious Hargrove - Wyandotte County Refiled in Federal 2002 DPDU
Appellate Cases Decided in FY 2004 Dis position FY filed Capital Representation
Jeffrey Hebert - Clay County Tried -Life 2003 Capital Appeals & Conflicts
FY 2005, six new cases were filed with a potential sentence of death.
Cases Tried in FY 2005: Disposition FY filed Capital Representation
Darrell Stallings - Wyandotte County Trial-Life 2002 PD Douglas Belt - Sedgwick County Trial-Life 2003 DPDU Nathaniel Hill- Montgomery County Trial -(awaiting penalty phase) 2003 DPDU
Appellate Cases Decided in FY 2005: Stanley Elms - Sedgwick County Agreement for Life 1999 CA&C DPDU Michael Marsh - Sedgwick County D.P. Statute Unconstitutional 1996 CA
In FY 2006, six new cases were filed with a potential sentence of death: Cheatham, Robinson, Burnett, and Gentry.
Cases Tried in FY 2006: Dis position FY filed Capital Representation Errik Harris - Wyandotte County Trial- Life 10/05 2002 Contract/Conflict Phillip Cheatham - Shawnee County Trial - Death 1 0/0 5 2006 Private
Appellate Cases Decided in FY 2006: Dis position FY filed Capital Representation Michael Marsh - Sedgwick County DP Statute Constitutional - USSC 1996 CA
In FY 2007, seven new cases were filed with a potential sentence of death.
14 Cases Tried or Pied in FY 2007: Disposition FY filed Ca pita I Representation Sidney Gleason - Barton County Trial - Death 8/06 2004 DPDU Greg Moore - Haivey County Trial -Life 7/06 2005 NEKCO/Private Everett Gentry - Sedgwick County Pied - Juvenile 7106 2006 Private Robert Fox - Seward County Pied DPDU Roger Ratliff-Miami County Pied DPDU Jose Solis - Johnson County Pied
Appellate Cases Decided in FY 2007: None
State Habeas Preparation in FY 2007: Gavin Scott
In FY 2008, Eight new cases were filed with a potential sentence of death: Lowrance, Tatum, Fox, Guerrero, Shears, Robinson, Strand, and Gifford.
Cases Tried or Pied in FY 2008: Disposition FY filed Capital Representation Theodore Burnett - Sedgwick County Trial-Life 2006 NEKCO/Private Scott Cheever - Greenwood County Trial-Death 2006 DPDU Edwin Hall - Johnson County Pied - Life/Sought Death 2007 Private
In FY 2009, twenty-five cases proceeded to trial with a potential sentence of death including five newly filed cases: Branden Reed, Terrance Watson, James Camoali, Israel Moralis, and Adrian Burks. Joaquin DeAnda was also filed as capital murder but because he is a juvenile, he cannot face the death penalty.
Capital Cases Tried or Pied in FY 2009: Disposition FY filed Capital Representation Gary Kleypas - Crawford County Retrial-death 1996 DPDU Michael Marsh - Sedgwick County Retrial-life by agreement 1996 DPDU Nathaniel Hill-Montgomery County Sentencing-life 2003 DPDU Elgin Robinson - Sedgwick County Trial-life 2006 Conflict Contract Justin Thurber - Cowley County Trial-death 2007 DPDU Andrew Guerrero - Wyandotte County Pied-life 2008 Private Kendrick Shears - Reno County Dismissed 2008 DPDU Charvelle Robinson - Reno County Dismissed 2008 Conflict Contract Jason Strand - Reno Dismissed 2008 Conflict Contract Marvin Gifford - Reno Pled-life 2008 DPDU Brandon Reed - Johnson County Pied-life 2008 DPDU
In FY 2010 seven additional cases were filed with a potential sentence of death: Israel Mirales, Adrian Burks, Marco Lomas, Louis Aguirre, James Kraig Kahler, Jason Cott, Roger Hollister.
Capital Cases Proceeding to Trial FY 2010: Disposition FY filed Capital Representation Kenton Williams - Wyandotte County 2007 DPDU Phillip Cheatham - Shawnee County 2nd Van Cleave Hearing 2006 Private Contract Terrance Watson- Saline County 2009 Private Pay and BIDS pay second chair James Camoali - Shawnee County 2009 DPDU Adrian Burks - Wyandotte County 2009 DPDU Joaquin DeAnda - Finney County Minor DPDU Luis Aguirre - Riley County 2009 DPDU James Kahler - Osage County 2009 Private 15 Jason Cott - Johnson County 2010 DPDU Roger Hollister - Atchison County 2010 Private
There are sixteen capital cases on appeal to the Kansas Supreme Court at this writing: Disposition FY filed Capital Representation Gary Kleypas - Crawford County 2°d Trial-Death 1996 CA Elgin Robinson - Sedgwick County Trial-Life 2006 CAC Justin Thurber - Cowley County Trial-Death 2007 CAC John Robinson - Johnson County Trial-Death 2003 Contract Jonathan Carr - Sedgwick County Trial-Death 2003 CA Reginald Carr - Sedgwick County Trial-Death 2003 CAC Douglas Belt - Sedgwick County Trial-Death 2005 CA Phillip Cheatham - Shawnee County Trial-Death 2006 CAC Sidney Gleason - Barton County Trial-Death 2006 CA Scott Cheever - Greenwood County Trial-Death 2006 CAC Theodore Burnett - Sedgwick County Trial-Life 2006 CA Richard Powell - Wyandotte County 1507 1998 CAC Christopher Lowrence - Montgomery County Trial-Life-Non Death 2008 CA Marvin Gifford - Reno County Pied-Life 2008 NIA Israel Mireles - Butler County Trial-Life without Parole 2009 CAC Marco Lomas - Grant County Pied-Life 2009 NIA
Reference
DPDU =Death Penalty Defense Unit PD = Public Defender CA&C = Capital Appeals and Conflicts CA = Capital Appeals NEKCO =Northeast Kansas Conflict Office
Costs associated with the death penalty were examined by Legislative Post Audit in their "Costs Incurred for Death Penalty Cases", issued in December, 2003, and the Judicial Counsel study issued in January, 2004. Generally, both determined that Kansas is experiencing the same issues and costs experienced by other states that have the death penalty. Legislative Post Audit made three recommendations.
The first Legislative Post Audit recommendation was to make sure the Death Penalty Defense Unit had a sufficient number of qualified attorneys so that death penalty cases did not have to be off-loaded to private attorneys. This was accomplished in 2003 by moving two attorney positions from the Topeka workstation to Wichita. Historically, we have been unable to keep any more than three of the five attorney positions filled in Topeka. Additionally, the two Wichita based attorneys can handle homicides in rural areas without public defender offices.
The second Legislative Post Audit recommendation was to look into the feasibility of establishing a conflicts office. Funds were requested from the legislature to accomplish that recommendation but funding was not approved.
16 The third recommendation was to look at cost control measures in other states. This was a specific assignment to the Judicial Counsel and their finding is that other states efforts are essentially the same as ours.
Legislation allowing a sentence of life without the possibility of parole has not encouraged pleas. Therefore, costs will continue to rise as more and more cases are added.
In FY 2007, Kansas began the next level in death penalty casework- the post conviction state habeas. This is a legal right unique to death penalty cases. Essentially, the entirety of the legal proceeding thus far- both the trial and the appeal, are reviewed for error, particularly error of counsel (ineffective assistance of counsel) and the case is presented again to the district court.
Because the capital defenders are reviewed for providing ineffective assistance of counsel at this stage of death penalty cases, the in-house staff has a conflict. Accordingly, experienced post conviction counsel from Oklahoma- a state that shares membership with Kansas in the federal Tenth Circuit Court of Appeals, has been contracted as lead counsel to present the first Kansas habeas case - Gavin Scott. It is not cost effective to establish an in-house habeas unit because the next habeas case will not proceed for another two years or more. The cost of this next phase of death penalty work is reflected in the Contractual Services section.
Capital Appeals and Conflicts Office & Capital Appeals Office
In FY 2002, the Capital Appeals and Conflicts Office (CA&C) and the Capital Appeals Office (CA) were established through reassignment of appellate defenders to provide appellate defense on capital murder convictions where the death penalty was issued and on other capital and capital eligible cases. Capital defense is the priority of these offices. However, both offices handle conflict cases and overflow cases from the appellate defender office.
17 . SSIGNED COU~Sb-
18 ASSIGNED COUNSEL
The 6th Amendment to the U. S. Constitution provides every person with a right to adequate and effective representation when charged with a crime punishable by imprisonment. State statutes (K. S .A. 22-4501, et seq.) also mandate state-funded representation when a person who has been charged with a felony is determined to be indigent. The two primary systems for delivering these constitutionally guaranteed services are the public defender system and a system known as appointed or assigned counsel.
The assigned counsel system of providing indigent felony defense is used as follows: in geographic areas where it is not cost effective to open a public defender office; in geographic areas where private attorneys refuse to accept court appointments as assigned counsel; and in cases where the public defenders have a conflict ofinterest and are therefore unable to provide defense services. However, more cases are handled each year by public defenders and the cost per case is lower when handled by public defenders. Assigned counsel was paid at the rate of $35 per hour and acceptance of court appointments was considered a professional duty for many years. The Kansas Supreme Court decision in Stephan v. Smith determined that participation as assigned counsel is voluntary. In response to that case decision, the Board increased the hourly rate for assigned counsel to $50 per hour. In the 2006 legislative session, the payment rate became statutory at $80 per hour. Additionally, the 2006 Omnibus Bill, Senate Substitute for House Bill Number 2968, included language that in the event the increase to $80 per hour was passed by the legislature, that the executive director of the Board of Indigents' Defense Services open additional public defender offices in locations where it is cost effective.
In response to that directive, the executive director conducted public hearings and reached agreements with the bench and local bar to maintain the assigned counsel system at a cost effective hourly rate in the following judicial districts: 29th - Wyandotte; 16th - Ford, Gray, Kiowa, Meade, Clark and Comanche; 11th - Crawford, Cherokee and Labette; and the 9th - Harvey and McPherson. The reduced hourly rate agreements to date range from $62 to $69 per hour. These rates allow for a continued cost effective delivery of quality defense services to indigent persons. In FY 2007, almost $407,000 was saved through the use of negotiated agreements with the bench and local bar. In FY 2008, that figure was $371,206. In FY 2009, $497,529 was saved through this negotiation.
Budget cuts in FY2010 forced the Board to exercise its statutory authority to reduce the hourly rate paid to assigned counsel from $80/hour to $62/hour, for casework performed on and after January 18, 2010. The total amount paid to assigned counsel in FY2010 was $8.lM.
19 PP END
20 STATE BOARD OF INDIGENTS' DEFENSE SERVICES
BOARD MEMBERS IN FY 2010
MEMBER OCCUPATION & HOMETOWN
Larry Daniels Attorney, Dodge City
Ruth E. Graham Attorney, Topeka
J. Roy Holliday, Jr. Attorney, Olathe
John Poertner Professor, Lawrence
Nathaniel Terrell E. Professor, Emporia
Denise Tomasic Attorney, Kansas City
John Val Wachtel, IV Attorney, Wichita
John Weber Business Owner, Wichita
21 Public Defender and Assigned Counsel Cases
Assigned Assigned Fiscal Public Counsiil Counsel To Year Defender • Pa:tment 0 Cases + dor 1S,OOO r: 2000 11,666 14 000 10,833 • "' ;ubii;o-;ter.aer------· 2001 ~--- 11,990 10,982 13,000 -t""l------H ' _,...r;;~- ...... 2002 11,845 11, 178
12,000 +.. ~ ,,; .. x: H,,; +, "ii ·. I · I\~,\ >('. I :;,·\;,;: ~:~ .... - - ....J 2003 12,865 12,528 2004 12,917 - 1 12,711 11,000 t,t·· ;, . do( ,. I 'T ;.~~-::!!!-! 2005 13,697 # 12,684 # 11,812 10,000 -I I ,I) ,,' ' ,. I·,,' 11 · l . I I I I, lf~ 2006 13,760 12,758 11,388 11 9,000 -t I I .. I· I I 1 "--~rM"Q ..: .:..' :...... ~·; ..r :__ .___:._ 1 ti-! 2007 13,432 13,091 11,287 2008 13, 110 13,242 11,661 8,000 2009 13,893 11,631 ~ 10,471 ~ ~ ~ ~ ~ ,fj _c:;s ~ ~ !'o 2010 13,893 12,107 11,000 !'5 ~ n; n; ~ ~ ~ ~ ~" ~ *2011 0 12, 100 11,000 Fiscal Year n; N h *2012 0 12, 100 11,000
* Estimated + based on cases closed C based on claims received # The Public Defender and Assigned Counsel caseloads reflect the opening of the new PD office in Independence. + Based on unique case count ,.. Fewer public defender cases due to 20% turnover in public defenders in FY 2007, decrease in case filings in Johnson County (-100) and over 200 reduction in cases completed in Johnson County.
22 Public Defender and Assigned Counsel Cost Per Case
Ass~ned COIWISel Assigned Fiscal m:\iblic Pmment Counsel Ye.- Detende..- Tnns cases $1,,000 1006 S391 ~ $900 1007 $373 $579 $800 ...... ------""-----...______._ 1008 $400 $513 $700 um $435 $483 Ill ,,,'F---·----- ...... _-- ·-·---·----·-··· 211)() $ $600 +-~..;;:::- ----·-----...... _ - - _,,__ $437 $463 0 "' $500 211)1 $452 $470
$400 211)2 $453 $45D 211)3 $300 $t49 $461 211)4 $456 $473 $200 2005 $473 $486 $519 $100 20)6 $51:5 $486 A ~ (/] 211)7 $544 $615 $713 ~ ~ ~ ~ ~ The adl1ili&J 23 Trial Office Caseloads FY 2010 Actuals** Agency Office Attorneys Cases Completed Cases/Attorney Shawnee County Public Defender 7.50 996 132.80 Junction City Public Defender 10.00 1,603 160.30 Salina Public Defender 7.00 1,143 163.30 Sedgwick County Public Defender 25.00 4,755 190.20 Reno County Public Defender 5.00 656 131.20 Johnson County Public Defender 13.00 2,241 172.40 Garden City Public Defender 3.00 583 170.00 Northeast Kansas Conflicts Office 4.00 426 106.50 Wichita Conflicts 4.00 571 142.80 Chanute Public Defender 3.00 480 160.00 Independence Public Defender 2.00 439 219.50 Trial Offices 83.50 13,893 166.39 *FY 08 is the first year of completed casework on Jessica's Law which require an extraordinary amount of attorney time per case. *FY 10 is the first year without a public defender office in Liberal, yet the completed caseload rose by 255 which is a 2% increase 24 FY 2010 Public Defender Offices in Kansas Republic Cheyenne Rawlins Decatur Norton Phillips Smith Jewell Washingtoj Marshall Nemah ' Cloud Mitchell Sherman Thomas Sheridan Graham Rooks Osborne i--~~~~~ Ottawa Clay 1.--""6-t."'"'"f·on City Lincoln Sal* PD\ . . '---""! Douglas Wallace Logan Gove Trego Ellis Russell D1ckmso Saline Miami Co IPD Ellsworth I Osage I IFranklm . IM. *1am1 . Rush Greeley l Wichita Scott Lane Ness Barton McPhersrn Marion Rice Lyon Western Regional PD Chase - Anderson Linn Reno County 'D Coffey Hodgeman h Pawnee Harvey Stafford * Reno S gwick Co~nty PD Hamilton Kearny I Finney Edwards I l Woodso Allen B b * our on Greenwood S Kansas Gray Ford Pratt Sedgwick Butler Grant I Haskell I ' l I Kingman * Stanton Kiowa Wilson I Neosho ICrawford Elk * Mont- Sumner Morton Stevens' Seward Meade Clark Coman ch Barber Harper Cowley ChautauqJa gomery f Labette lcherokee 25 FY 2010 Counties Having Public Defender Availability and/or Contract Counsel Or Agreement to Reduce Costs with Local County Bar: Shaded Area C:heyenne ,I Raw 1i1U> Decatur Norton Phillius Smith Shennan Thomas Sheridan Graham otte Wallace 26 2010 Assigned I Contract Counsel Total Felony Cases Per County 18 8 12 I 15 22 25 6 9 21 68 Rfl)'lbli: Cl'.1.tytrin~ ~lil'I.~ I I>t i::i.n Honan Phillil>s ~ JtWdl. 65 \tl\dl ... -- •• 37 27 54 45 I 2 9 33 14 Cloud Mlt.di~ll Shuman n·LOmti I Sha-:idm. Gn.ht.m Rook' o,1/ome 18 Chy 6 Ott.t:•.n 3 12 I 5 2 215 51 Liru:oltt 6 176 11 \Vtllt.ce LO€Ul Ii Owe lngo Ellis R1.ustll 46 : $-11.lin~ 2 I 9 II 1 21 1'- 15 13 215 ElliYronh 157 32~0,lgt P.tmldm. Mi.mu Ru.sh 61 52 fhd11y I Wichilt I' Scott I LU'lt 14 48 60 10~ I I I I I K•ff1 0 ~~ tron h Cafffy .Andt:rson I Litln 4 \ 7 \ 130 I. ·...... · .. ..•.' .. I 30 t .& 27 2010 Assigned Counsel Attorney Costs/Cost per Case by County ...... $12,843 47 889 $7,425 $9,055 $15,769 $31,977 $24,619 $5,524 $5,699 $11,510 $46,522 '$32, 165 $ • ~14,95' $714 665 4 0 $928 $1,051 $633 $551 $684 $919 $ $ ~ . $755 $1,453 $985 $921 Remibli: Brown Daniph · ~lin .s: _,_ . .. .· . Ntmth& , CMym\e Dec'tar Non.m Phillip~ Smlih Jewe;ll $40,617 Wl.. Mus};a)l , $104,85)~ . . I $5 $47,104 $27,511 $1,716 $15,842 $32,954 $14,709 $31,608 $628 $22 ,70~ $91,346 $99,690 . Atc:hisoJ\ $854 Clou.d 92 2 $872 $611 $858 $1,760 $999 $1,051 $841 I . . ~~544 ' $639 $33 428 Hi I A Mltcl\4:11 $11,970 Ch.y $789 · 'Pot1$.Wl~ Ja.dm:h $ . !).5;~ Slo;tnna,n 'lh~ Slw'!4ct\ · ~ ~oks O$bomi' 655 $3,780 $665 ~Y -1 il!.409,400 Jtffmon $693 Wyu\ r.i11te $53,973 $630 Otttw-. • . $36,192 $1,16.- - - .,...,J"- $1,~ $4,198 $7,488 $33,619 $1,414 . $147,759 1 $558 'tgl . • ,343 L:h\coh\c $8,838 (Jury . $613 Slu.'.'i'iWt 11607,5 !)353,268 $1,399 $624 $6,724 $707 $687 $1,058 $191,009 $934 $803 J ,.:.., , $1 217 JZ.. t~ W'".J.ltc •I! Lo gm ffiM! 'tngQ Ellis RusseU $37,034 $1,085 $44,645 '11&1)'-'lll\SU $83 ,044 D ~lu · $805 Stlitu I>:l&ituon : $1,717 ~205,374 $62,119 $10,898 $14,791 $23,561 $19,257 $12,445 $146,283 $955 $4,072 Elkwolll\ $141,901 Mm::r:is ' $1,081 $581 $957 244,430 Ongt $2,036 $1,211 $1,233 $1,1383 $680 $57,655 '. FhMlin Milimi $1,:284 Rus1\ $904 $49,224 $9,847 $759 Clree'1ey Wichh Scott Luur ];{U$ But.on $945 $947 $61,964 $87,052 $69,233 $703 $56,537 Rke, MC.llMI'.$01'.l Marion Lv 28